P L D 2026 Balochistan 6
Before Iqbal Ahmed Kasi and Muhammad Najam -ud-Din Mengal, JJ
NAJEEBULLAH ---Petitioner
Versus
FAMILY JUDGE -II, QUETTA and others ---Respondents
Constitutional Petitions Nos. 694 and 704 of 2022, decided on 29th August, 2025.
(a) Family Courts Act (XXXV of 1964) ---
----S. 5, Sched. ---Limitation Act (IX of 1908), S.5---Dower ---Dispute arising from a post -marital
agreement between husband and wife relating to dower ---Subsequent enhancement and fixation
of dower ---Scope---Jurisdiction of family court to take cognizance of dower matter arising out of
a post -marital agreement between husband and wife---The petitioner/husband and respondent
No.2/wife entered into a valid marriage, with a dower of Rs.200,000 fixed at the time of Nikah---
Later, an agreement was executed between the parties, wherein the petitioner/husband undertook to provide monthly maintenance, separate accommodation, and other financial commitments ---
However, their relationship subsequently deteriorated due to alleged maltreatment and non-fulfilment of obligations, following which respondent No.2/wife filed a suit for recovery of dower, gold, and maintenance before the family court, which decreed the suit ---The petitioner’s
appeal before the district court was dismissed as time -barred, leading to the filing of the present
Constitutional petitions challenging both judgments ---Held: Plea of the petitioner/husband that
subsequent fixation of dower was without lawful authority did not hold ground in view of the settled principles of Mohammadan law insofar as dower was not a rigid or unalterable condition confined only at the time of marriage, rather it was the right of wife which could be stipulated at
any of three stages of marriage i.e. (i) before the marriage, (ii) at the time of marriage, (iii) or
even after the marriage has been solemnized ---Whilst dilating upon the maintainability of the
petition, High Court observed that the impugned judgment passed by the Trial Court on 11.02.2021, while the same was assailed before the appellate court on 19.07.2021 after lapse of five months ---Admittedly, petitioner kept silent for a long -lasting period of more than five
months without any justifiable reason and sufficient cause for delay in filing the appeal, which was hopelessly time barred ---Even otherwise, the application for condonation of delay filed in
the appellate court also did not show any plausible justification, which again showed the conduct and irresponsibility of petitioner ---Further, family court had the jurisdiction to take cognizance
of the dower claim which had arisen out of the post -marital agreement between the parties ---
Constitutional petitions were dismissed, in circumstances.
Ghania Hassan v. Shahid Hussain Shahid and another 2016 SCMR 2170 and Mst.
Naziran Begum through Legal Heirs v. Mst. Khurshid Begum through Legal heirs 1999 SCMR 1171 rel.
(b) Family Courts Act (XXXV of 1964) ---
----S.5, Sched. ---Dower ---Essence and significance---Right of wife ---Scope ---Dower is not a
rigid or unalterable condition confined only to the time of marriage ---Rather, it is a right of the
wife which may be stipulated at any of three stages: before the marriage, at the time of marriage,
or even after the marriage has been solemnized ---Jurisprudential authorities as well as judicial
precedents consistently recognize that dower may not only be fixed subsequently but may also be increased by mutual consent after the marriage---The rationale underlying this principle is that dower (mehr) is an obligation imposed upon the husband as a mark of respect for the wife and as a token of responsibility undertaken by him, therefore, its fixation or enhancement at a later stage does not offend any principle of law or equity.
(c) Family Courts Act (XXXV of 1964) ---
----Ss. 5, Sched. & 17--- Qanun- e-Shahadat (10 of 1984), Art.79---Dower, claim of ---
Petitioner/husband alleging the dower agreement between parties to be fake and forged while questioning the jurisdiction of family court to take cognizance of the matter ---Jurisdiction of
family court ---Scope---The family courts, established under the Family Courts Act, 1964, are
vested with special jurisdiction to entertain, try, and decide all matters specifically enumerated in
the Schedule of the Act, which explicitly includes disputes pertaining to dower ---It is also to be
borne in mind that the family courts function outside the strict rigors of the C.P.C., and the technical requirements of the Qanun -e-Shahadat, 1984---The legislative intent behind this
departure is to facilitate an inquisitorial and conciliatory procedure, keeping in view the sensitive
nature of family disputes ---For instance, Art. 79 of the Qanun- e-Shahadat, 1984 ordinarily
requires production of at least two attesting witnesses to prove execution of documents creating
future financial obligations; yet, by virtue of S. 17 of the Family Courts Act, 1964, such rigid formalities stand excluded in family disputes ---Thus, in matters concerning dower, the family
court is not shackled by technical evidentiary requirements but is empowered to adopt a more flexible approach to arrive at a just and equitable resolution within the familial context.
Mushtaq and others v. Mst. Fatima and others PLD 2025 SC 434 rel.
(d) Limitation ---
----Principles ---The structure of the law of limitation is founded upon the legal maxims, that
delay defeats equity; time and tide wait for none; and law helps the vigilant not the indolent ---
The object of law of limitation is to help the vigilant and not the indolent ---Helping hand could
not be extended to a litigant who became forgetful of his rights ---Besides, invoking of remedy by
some aggrieved person beyond the period of limitation prescribed for redressal of grievance,
creates a valuable right in favour of the opposite party, therefore, in such case, delay of each day has to be explained by the defaulting party to the satisfaction of the Court, which could not be
condoned lightly or as of routine, as such arbitrary exercise of discretion would cause serious
prejudice to the opposite party.
Jalal ud Din Kakar and Kaleemullah Kakar for Petitioner.
Muhammad Nawaz Tareen for Respondents.
Changaiz Dashti, Assistant A.G. for the State.
Date of hearing: 20th August, 2025.
JUDGMENT
MUHAMMAD NAJAM -UD-DIN MENGAL, J. ---This common judgement disposes
of C.Ps. Nos. 694 and 704 of 2022, filed by the petitioner against the judgments passed by the
learned Family Judge -II, Quetta and the Additional District Judge -IX, Quetta. Since not only
common question of law and facts are involved in both the petitions, but the grievance of the petitioner is same, thus there no need to draw the facts of each petition.
Constitutional Petition No.694 of 2022 filed under Article 199 of the Constitution of
Islamic Republic of Pakistan 1973 ("the Constitution"), which carries the following prayer:
"Accordingly, respectfully prayed that impugned order dated 12- 03-2022 passed by
Family Judge -II Quetta may kindly be set aside. Resultantly, the decree dated 11- 02-2021 may
kindly be recalled and matter may kindly be remanded back to the concerned forum for its
disposal on merits, in the interest of justice."
While, in the Constitutional Petition No.704 of 2022 the petitioner sought the following
relief:
"Accordingly, respectfully prayed that impugned order dated 21- 03-2022 passed by
district Judge -IX, Quetta may kindly be set aside. Resultantly, the decree dated 11- 02-2021 may
kindly be recalled and matter may kindly be remanded back to the concerned forum for its disposal on merits, in the interest of justice."
2. Concise facts of the instant petition are that the petitioner and Respondent No.2 entered
into a valid marriage on 27th March 2015 in accordance with Islamic injunctions, and the Haq Mehr was fixed amounting to Rs.200,000/ -. Furthermore, an agreement between the parties was
executed with the certain terms and conditions, vide agreement dated 29th April 2016.
Subsequently, respondent No.2 shifted to the house of the petitioner along with her dowry
articles. Initially, the spouses lived a cordial and happy life, but with the passage of time, their relationship deteriorated due to alleged maltreatment and failure of the petitioner to provide maintenance. In the meanwhile, the respondent No.2 came to know that the petitioner violated the terms and conditions of the agreement dated 29th April 2016 by means of contracting second
marriage, but failed to provide monthly maintenance and separate accommodation for the last
three months to the respondent No.2. It is further averred in the plaint that the respondent No.2
further demanded for her dower amount, 10 tola Gold, monthly rent for a period of three months and an amount of Rs.2500,000/ - for house as per the terms and conditions of the referred
agreement, but the petitioner instead of fulfilling the commitments according to the agreement extended threats to the respondent No.2.
3. The suit of the respondent No.2/plaintiff was contested by the petitioner/defendant by
means of filing written statement. After framing of issues and recording evidence pro and contra,
the suit of respondent No.2/plaintiff was decreed by the learned trial Court in her favour, vide judgment and decree dated 11th February 2021. Feeling aggrieved the petitioner/appellant challenged the judgment and decree of the learned trial Court before the Court of learned Additional District Judge -IX, Quetta ("appellate Court") by filing appeal. During the course of
pendency of the same appeal, the petitioner also filed an application under Section 12(2), C.P.C. in the trial Court, which was dismissed with the observations that the petitioner has already
assailed the judgment and decree of the trial Court, let the appellate Court to
decide the same, which will itself describe the fate of the judgment dated 11th February 2021.
Subsequently, the appeal of petitioner was also dismissed being time barred, vide impugned judgment dated 21st March 2022. Whereafter the petitioner has filed the instant Constitutional Petition.
4. Learned counsel for the petitioner contended that at the time of Nikkah Dower amount
was fixed as Rs.60,000/ -, while subsequently, the respondent managed to prepare a fake
agreement ( ) dated 29.04.2016, which is sustainable under the law; that the alleged
agreement shows the concept of contingent contract, which purely falls within the purview of Civil nature, as such, the family Court has no jurisdiction to entertain the civil matter; that the respondent fraudulently obtained decree in her favour by misrepresenting the Court; finally he prayed for setting aside the impugned judgments and decree of the Courts below.
5. In rebuttal, the learned counsel for the respondents controverted the arguments so
advanced by the learned counsel for the petitioner and mainly relied upon the settled dictum of
Mohammadan law "that dower may be fixed either before or at the time of marriage or after marriage and can be increased after marriage"; that the appeal of petitioner was time barred, which was rightly dismissed by the learned appellate Court, thus he urged for dismissal of the petition.
6. We have heard learned counsel for the parties and have gone through the available
record. Before discussing the merits of the petition, it would be appropriate to dilate upon the contention raised by the learned counsel for the petitioner regarding the subsequent fixation and enhancement of dower. It is by now a settled dictum of Mohammadan Law that dower is not a rigid or unalterable condition confined only to the time of marriage. Rather, it is a right of the wife which may be stipulated at any of three stages: before the marriage, at the time of marriage, or even after the marriage has been solemnized. Jurisprudential authorities as well as judicial precedents consistently recognize that dower may not only be fixed subsequently but may also be increased by mutual consent after the marriage. The rationale underlying this principle is that dower (mehr) is an obligation imposed upon the husband as a mark of respect for the wife and as a token of responsibility undertaken by him, therefore, its fixation or enhancement at a later stage does not offend any principle of law or equity. Consequently, the plea of learned counsel for the petitioner that subsequent fixation of dower is without lawful sanction does not hold ground in view of the well -settled principles of Mohammadan law. Reliance in this regard can be placed on
para- 287 of "Principles of Mohammadan Law" by DF Mulla. For convenience referred para is
reproduced as under:
"287. Dower may be fixed after marriage. The amount of dower may be fixed either
before or at the time of marriage or after marriage and can be increased after marriage."
7. While dealing with the fixation or enhancement of dower amount, the Hon'ble Supreme
Court of Pakistan, while relying upon the Mohammad by DF Mulla (Pakistan Edition) in its
reported judgment in the case titled as "Ghania Hassan v. Shahid Hussain Shahid and another (2016 SCMR 2170)" has held as under:
"7. In the Principles of Mohammadan Law by DF Mulla (Pakistan Edition), it has been
stated as follows:
"287. Dower may be fixed after marriage: ---The amount of dower may be fixed either
before or at the time of marriage or after marriage can be increased after marriage."
(emphasis supplied)
In the Mahommedan Law Vol II (Containing the Law Relating to Succession and Status
Compiled from Authorities in the Original Arabic) by Syed Ameer Ali, it has stated as follows:
"Dower may be increased after marriage: --
The Musulman Law accepted in the matter the more liberal principle of the pre Islamic
Arab customs. Under the Islamic system there is no community of goods between husband and
wife. She is absolute owner of her own property and of whatever the husband settles on her as
dower. The terms of the settlement are agreed to before marriage, but when these have been
omitted, they may be settled subsequently. The terms of the contract may be varied at any time
during the continuance of the marriage by mutual consent. The wife has the power either to relinquish the whole dower -debt, or make an abatement in her husband's favour: whilst the
husband, similarly, has the power of making additions to her settlement or dower.
The amount of the dower, as already pointed out, is either settled by the contract of
marriage or by custom, or in the case of tafwiz or tahkim, by a subsequent agreement between the parties, or by an order of the Judge, or arbitrators."
(emphasis supplied)
In Hedaya (2nd Edition Vol. 1 page 45) Commentary on the Muslim Law, it is stated
that:
"Case of an addition made to the dower after marriage. ---If a man makes any addition to
the dower in favour of his wife subsequent to the contract, such addition is binding upon him. "
8. The question of addition of dower came up before this Court in the judgment, reported
as Mian Aziz A. Sheikh v. The Commissioner of Income Tax Investigation, Lahore (PLD 1989
SC 613), wherein after examining the classical text books on the subject and the previous judgments of the Sub- continent on the matter in issue, it was observed as follows:
"19. It would have been seen that an acknowledgement in any form including declaration
by the husband with regard to increase of dower is, as held by the Lahore High Court in Chan Pir's case, "quite sufficient" to prove the same under Muslim Law. ... "
A similar view was taken by this Court in the judgment, reported as Ameer Ali Khan v.
Kishwar Bashir and another (PLD 2004 SC 746).
An overview of the above reveals that it is not a settled proposition of law that the dower
can be fixed before marriage and at time of marriage or thereafter. Furthermore, the dower once settled can always be increased by the husband or by an agreement between the parties."
8. Similar view has also taken by the apex Court in the case of "Mst. Naziran Begum
through Legal Heirs v. Mst. Khurshid Begum through Legal heirs" (1999 SCMR 1171)" the relevant portion whereof is drawn hereinbelow:
"It is well- settled that under. Hanfi Law a husband is entitled to fix any amount of dower
either at the time of marriage or even subsequently and also provide for mode of its a payment."
9. Since the second limb of the arguments advanced by learned counsel for the petitioner
that the matter in hand falls exclusively within the domain of civil jurisdiction and therefore
could not be adjudicated upon by the learned Family Court. This contention, however, is misconceived. The Family Courts, established under the Family Courts Act, 1964, are vested with special jurisdiction to entertain, try, and decide all matters specifically enumerated in the
Schedule of the Act, which explicitly includes disputes pertaining to dower. It is also to be borne
in mind that the Family Courts function outside the strict rigors of the Code of Civil Procedure,
1908, and the technical requirements of the Qanun- e-Shahadat Order, 1984. The legislative
intent behind this departure is to facilitate an inquisitorial and conciliatory procedure, keeping in view the sensitive nature of family disputes. For instance, Article 79 of the Qanun- e-Shahadat,
1984 ordinarily requires production of at least two attesting witnesses to prove execution of documents creating future financial obligations; yet, by virtue of Section 17 of the Family Courts Act, 1964, such rigid formalities stand excluded in family disputes. Thus, in matters concerning dower, the Family Court is not shackled by technical evidentiary requirements but is empowered to adopt a more flexible approach to arrive at a just and equitable resolution within the familial
context. Consequently, the argument that the present dispute was of a purely civil nature beyond
the jurisdictional competence of the Family Court is without legal substance. In this respect
reliance can be placed on the case of "Mushtaq and others v. Mst. Fatima and others (PLD 2025 Supreme Court 434)" whereby the Hon'ble Superior Court of the land has held as follows:
"3. We begin our analysis by addressing a fundamental question concerning the
sufficiency of evidence required to prove the execution of a dower deed. It is essential to
understand that claims related to the recovery of dower are distinctly categorised within the types of disputes that the Family Courts Act of 1964 was explicitly designed to address. This legislation reflects society's increasing recognition of the necessity for prompt and effective
resolutions to matters concerning marriage and family affairs. The Act aims to facilitate a more
streamlined and accessible judicial process in these sensitive areas, thus addressing the often
complex emotional and legal dynamics. Notably, the Family Courts operate outside the limitations typically imposed by the Code of Civil Procedure, 1908, and the more stringent standards set forth by the Qanun- e-Shahadat, 1984. This divergence from conventional judicial
procedures holds particular significance when we examine Article 79 of the Qanun- e-Shahadat,
1984. This Article mandates that at least two attesting witnesses must be produced to establish the execution of financial documents or those about future obligations. However, in matters of family law, such as dower, this requirement is exempted under Section 17 of the Family Courts Act of 1964. The Family Court's jurisdiction leans towards an inquisitorial approach designed to encourage amicable settlements while maintaining a focus on the familial context. Consequently, the evidentiary requirements to prove the existence and validity of a dower deed are significantly
less stringent than those encountered in traditional civil litigation. A review of the records
reveals that the Family Court and the First Appellate Court misinterpreted and misapplied the applicable legal principles. This misjudgement led to setting up an incorrect framework for assessing the evidence presented by the plaintiff regarding the execution of the dower deed. Such a legal error impaired the evaluation process and undermined the strength of the plaintiff's position.
10. Now dilating upon the maintainability of the petition, as the impugned judgment passed
by the learned trial Court on 11th February 2021, while the same was assailed before the learned appellate Court by filing on 19th July 2021 after lapse of five months. Admittedly, petitioner kept silent for a long- lasting period of more than five months without any justifiable reason and
sufficient cause for delay in filing the appeal, which was hopelessly time barred. Even otherwise,
the application for condonation of delay filed in the appellate Court also does not show any
plausible justification, which again shows the conduct and irresponsibility of petitioner. Under such circumstances the law laid down by the apex Court does not help the petitioner, "Maxim, 'vigilantibus et non dorminentibus jura subveniunt" (law helps vigilantes not the indolent). The learned appellate Court while deciding the appeal of the petitioner has rightly observed as under:
"At the very outset, the appellant along with instant appeal filed an application for
condonation of appeal. The learned trial court passed the impugned Judgment and Decree dated 11.02.2021, whereas, instant appeal has been filed on 19.07.2021, almost after 05 months. The reason for filing the late appeal has
been asserted by the appellant that the mother of the appellant was seriously ill having heart
disease and having no knowledge of the passing of the impugned Judgment and Decree dated
11.02.2021. The of the case filed/record reveals that the contention of the appellant regarding the illness of his mother has not been supported with any medical documents, which could have established that, infact, the said reason restrained the appellant for filing the appeal on time. Further, the reason that the appellant was unaware about the impugned Judgment and Decree doesn't also inspire
confidence. Because, the law required the litigant to be vigilant. In view of such, the appellant
has failed to satisfy to get the delay condoned.
8. Pursuant to the above, when it is found that the appeal is barred by limitation, then
there further discussion on merit is not required."
11. Since enacting the Limitation Act, 1908, the legislature in its wisdom has fixed the period
of limitation for a particular action. The structure of the law is founded upon the legal maxims,
that delay defeats equity, time and tide wait for none and law helps the vigilant not the indolent. The object of law of limitation is to help the vigilant and not the indolent. Helping hand could not be extended to a litigant on having become forgetful of his rights. Besides, invoking remedy by some aggrieved person beyond the period of limitation prescribed for redressal of grievance, creates a valuable right in favour of the opposite party, therefore, in such case, delay of each day has to be explained by the defaulting party to the satisfaction of the Court, which could not be condoned lightly or as of routine, as such arbitrary exercise of discretion would cause serious prejudice to the opposite party. In the case in hand, petitioner proved himself indolent towards his rights and kept silent for more than five months.
12. While confronted with the above proposition of law, the learned counsel for the petitioner
has failed to point out any illegality or irregularity in the impugned judgments & orders passed
by the learned Courts below to warrant interreference by this Court.
Thus, in view of the above, the petitions being devoid of merits are accordingly
dismissed.
UN/133/Bal. Petitions dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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